#14679 - Negligence Public Authorities - GDL Tort Law

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Public Authority Liability

• Lunney & Oliphant note public authorities are attractive targets for litigation because:

  • Deep pockets

  • Array of powers & duties opens them up to diverse negligence actions

However the policy reasons against expansion include:

• Depletion of public funds

• Defensive performance

• Interference with public administration

• Bailey & Bowman: non-justiciability & the courts’ reluctance to pry into public authorities’ sensitive balancing of priorities

Hill v Chief Constable of West Yorkshire (see ‘General Negligence’ doc)

HL pointed out the public policy arguments surrounding public authority liability in tort:

• Liability might encourage defensive policing

• Tort liability was not an effective tool for ensuring competence as the police may be expected to “apply their best endeavours” per Lord Keith

• Regulatory bodies & complaints procedures more appropriate than the courts to address failures

• Diversion of public resources

However Lord Keith also recognised that a higher standard of care may be applied to the police in circumstances permitting it

Human Rights & Public Authorities

HRA 1998 requires that ECHR is effective:

• Vertically HRA S.6

• Horizontally – as S.6 includes courts who must make decisions compatible with HR

• Lunney & Oliphant: inconsistent adaptation of negligence law to HRA – notes that Art 6 fair trial is not breached where a claim is struck out at the prelim hearing based on the third limb of the three stage test

Osman v UK

‘Blanket immunity’ of Hill was breach of Art 6 fair trial right

Held: violation found. Disproportionate restriction of Art 6 right as the immunity meant the substantive merits could not be explored. Found that the proximity limb would be sufficient to prevent floodgates

Established the operational obligation is the duty of the state to take preventative operational measures to protect the lives of individuals

Z v UK

X v Bedfordshire claimants

Held: violation found. Breach of Art 3 degrading treatment. This could not be outweighed by the difficult balancing act of the councils in weighing up respect for family life. HOWEVER it established that there was no Art 6 violation - counter to its findings of Osman – this was a misunderstanding of the court in that case –

Divergence of tort & HRA remedies:

• Du Bois: “The practical effect of this approach is to direct a significant class of cases away from the tort law route into the HRA route”

Education

X v Bedfordshire; M v Newham

Combined appeals from children who had been failed by local authorities – the Bedfordshire cases involved child abuse & the Newham cases involved educational authorities

Held: all child abuse cases failed with some vicarious liability found for the education cases. 4 types of claim:

• Breach of statutory duty: no claim successful – nothing in the statute evincing intention to be actionable in private law

• Breach of duty of care in exercise of statutory functions: one education claim succeeded as it was holding itself out as a service, however doubt was expressed extra judicially by the judge & the rest were struck out as this was inconsistent with the purpose of the statutes

• Vicarious liability for employees of the local authority:

  • Abuse cases: failed the third limb of the three-stage test & in the parental rights cases found that there would be a conflict of interest

  • Education cases: educator & child close to a normal professional relationship; no conflict of interest; in the case of a headmaster there is a voluntary assumption of responsibility (Henderson v Merrett)

• Lord Browne-Wilkinson threw out a 4^th argument of ‘negligent breach of statutory duty’ as no such thing exists

Phelps v Hillingdon LBC

Claiming negligent decisions about education made by local authority.

Held: liability found (in light of Osman no blanket immunity):

• Failure to provide appropriate special needs provisions will amount to direct breach of duty (contrary to X v Beds) as lack of express statutory provisions for damages does not negative a duty of care

• Failure to mitigate the damage caused by dyslexia can constitute a personal injury

• Vicarious liability for independent acts of agents

• Duty owed to both employer & client

Child Protection

X v Beds above for finding against duty of care

• Lord Bingham’s dissent in CA: acknowledges separate duty of care created through relationship with child; doubts strength of policy arguments about defensiveness; restricting liability can be done through proximity ground

Barrett v Enfield LBC

Claiming for failures during foster care re: adoption & reintroduction to birth parents

Held: a local authority is potentially liable for negligence; no immunity to the suit:

• Psychiatric harm is actionable

• General undesirability of striking out claims in an incremental area of liability was emphasised

• Here the assumption of responsibility meant the policy factors could be distinguished from X v Beds

Z v UK confirmed that there was no procedural violation in the ‘exclusionary rule’ however substantive grounds confirmed a violation

JD v East Berkshire NHS

False diagnoses of child abuse – parents of children claimed

Held: (HL) the extension of liability could not go to the parents of children in the social care system as this would be a conflict of interests for the authority who must hold the child’s welfare above all other factors

• Lord Nicholls: compared established duty of care to patient, not a relative of patient

  • HOWEVER note some of the caselaw on psychiatric harm & immediate shock of relative caused my medical negligence

Lawrence v Pembrokeshire CC
Child wrongly placed on Protection Register – mother claiming psychiatric injury

Held: refused counsel’s invitation to take a ‘small incremental step’ in extending duty to the mother in light of HRA:

• A claim could fail on tortious policy grounds and succeed on HR grounds, and this inconsistency does not merit the adaptation of the common law.

• The way to find consistency was, moreover, that where a qualified HR is at issue, and a duty of care isn’t found in tort for policy reasons, this will amount to a proportionate interference necessary in a democratic society

• Auld LJ emphasised that policy urges public officials to be excused for a ‘well-intentioned but negligent mistake’ echoing X v Beds

MAK v UK

Misdiagnosis of child abuse & tests done without consent of the parents – delay in finding the true diagnosis – father of child claimed infringement of Art 8

Held: there was an infringement of Art 8 & Art 13:

• Every mistaken diagnosis of child abuse will not be actionable

• However, the delay in this case meant the interference was not justified or proportionate

• Tests done without consent were also a violation of Art 8

Police

Hill v Chief Constable established no duty owed on policy grounds

Swinney v Chief Constable of Northumbria

Swinney gave information about an unlawful killing which was then left in a police car & stolen. Swinney then received violent threats & claimed psychiatric harm

Held: (CA) this could not be struck out – it was arguable. This was an example of an assumption of care. Floodgates didn’t apply here & in fact urged liability to be found to encourage information.

Van Colle v Chief Constable of Hertfordshire

Van Colle’s ex-employee began harassing him to encourage him not to give evidence against him for a previous theft. The police arranged to make a statement with Van Colle but he was killed. Parents alleged Art 2 & 8 infringement

Held: (CA) following Osman v UK there is a positive duty to act for police where there is a real and immediate risk to life. However here the risk of death was not great enough to amount to a violation of Art 2: arguments rejected that he was in a closed class of claimants and therefore a higher standard of care was owed – Hill remains good law

Combined appeal: Smith

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